Evident Partiality and the Judicial Review of Investor-State Dispute Settlement Awards: An Argument for ISDS Reform

44 Pages Posted: 29 Aug 2018 Last revised: 26 Jun 2019

See all articles by Antonia Eliason

Antonia Eliason

University of Mississippi School of Law

Date Written: August 1, 2018

Abstract

International investment law, and particularly investor state dispute settlement (ISDS) is currently the subject of many heated debates, from the fairness of bilateral investment treaties, to the lack of precedent in ISDS, to the impartiality of arbitrators. This article examines national judicial review of international investment arbitral awards in the context of U.S. domestic law, focusing on evident partiality and the appropriate standard of deference to be applied to such awards, particularly in the case where challenges to arbitrator integrity were denied at the arbitration stage. National courts are not the ideal fora for adjudicating challenges to ISDS awards, as evidenced by differing standards of deference across jurisdictions and the lack of familiarity with international treaties and international rules of arbitration. Addressing the problem at its root, namely through amending international rules of arbitration or by creating additional levels of international review would be more effective. The problem of arbitrator partiality in ISDS is reflective of systemic problems.

This article argues that the issues of interpretation arising in reviewing ISDS awards before domestic courts suggest that reform of the ISDS system would be a more effective means of safeguarding party interests from arbitrator conflict of interest or corruption. This article builds on the standard of deference established by the Supreme Court in BG Group, focusing on the Argentina v. AWG Group case that was decided by the D.C. Circuit Court of Appeals in July 2018. In reviewing the Argentina v. AWG Group case, the article highlights some of the challenges in having domestic courts review ISDS awards. At the same time, the article argues that while a high level of deference to international arbitration awards is usually desirable, the standard of review with respect to ISDS claims should be clarified by U.S. courts as deference is not always the correct standard. Where the integrity of the arbitral tribunal itself is in question, that deference should be set aside in favor of closer review. Conflicts of interest that might elsewhere be viewed as significant enough to disqualify arbitrators from participating in arbitrations are viewed as commonplace in international investment arbitration and considered an inherent part of the system. This should not be the case.

Keywords: ISDS, International Investment, Arbitration, Evident Partiality, FAA, AWG Group, Investor State Dispute Settlement, International Arbitration, BG Group, Conflicts of Interest

Suggested Citation

Eliason, Antonia, Evident Partiality and the Judicial Review of Investor-State Dispute Settlement Awards: An Argument for ISDS Reform (August 1, 2018). Georgetown Journal of International Law, Vol. 50, 2018, Available at SSRN: https://ssrn.com/abstract=3235769 or http://dx.doi.org/10.2139/ssrn.3235769

Antonia Eliason (Contact Author)

University of Mississippi School of Law ( email )

Lamar Law Center
P.O. Box 1848
University, MS 38677
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
165
Abstract Views
1,060
Rank
335,167
PlumX Metrics